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City Attorney Challenges SDPD on Rape Kit Testing

Police Chief Shelley Zimmerman maintains that SDPD’s approach not to test every rape kit is smarter and more efficient. “You might say we have a professional disagreement,” said City Attorney Mara Elliott, who believes all kits should be tested.

Two of San Diego’s top law enforcement officials remain at odds over how police should handle DNA evidence collected from victims of sexual assault.

During her 2016 run for city attorney, and now almost a year into her tenure, Mara Elliott has repeatedly called for the San Diego Police Department to send all sexual assault kits to the crime lab for analysis. She’s had multiple discussions with Police Chief Shelley Zimmerman, she said, to no avail. Zimmerman maintains that the department’s approach — to first determine whether the kit will provide useful evidence before sending it off the lab — is smarter and more efficient.

“You might say we have a professional disagreement,” Elliott said.

Elliott recently sent letters to Gov. Jerry Brown, urging him to sign legislation encouraging law enforcement agencies to analyze all sexual assault kits. Right now, there are roughly 2,500 untested kits in the San Diego Police Department’s evidence room, and between 6,000 and 9,000 untested kits statewide.

San Diego’s approach came under scrutiny in 2014 when a state audit found that three of California’s largest law enforcement agencies — the Oakland and San Diego police departments and the Sacramento County Sheriff’s Department — analyzed only about half of the kits they collected. While the audit concluded that the benefits of testing all kits was “unknown,” Oakland and Sacramento changed their approach, making it a practice to analyze all kits.

But just because a kit is analyzed doesn’t mean the resulting DNA profile can be uploaded to state and federal databases. If investigators aren’t confident a crime actually occurred, federal rules bar a DNA profile from being uploaded to the national Combined DNA Index System database. That is why the department does the investigative work upfront, said Jennifer Shen, manager of the San Diego Police Department’s crime lab.

“By the time a kit gets to the laboratory [for analysis], it’s been vetted as a piece of evidence that’s meaningful, as a piece of evidence that could yield a profile that we would be able to upload into a database at a national or state level,” Shen said last year.

But some of the department’s untested kits come from victims deemed “uncooperative” by investigators. Advocates argue that even if a victim refuses to cooperate with prosecutors, a kit’s DNA evidence could identify a repeat offender, or solve a cold case. That is Elliott’s position.

“I have yet to hear a convincing explanation for why San Diego should not join with other cities in adopting a policy to test every rape kit that law enforcement collects,” she said. “The experience in other jurisdictions shows that the evidence in untested kits can prove valuable in solving cold cases and identifying serial rapists. That alone is good reason; removing sexual predators from the street should be among law enforcement’s highest priority.”

“We always want the very best and to seek justice for our crime victims. Anyone who thinks we do differently is flat-out wrong,” she said via a spokesman. “I have personally invited our city attorney to sit down with our crime lab manager and our Sex Crimes Unit to help her understand our methodology. To this date, she has refused to accept that offer.”

The three bills Elliott’s pushing for would require law enforcement agencies to submit annual reports to the California Department of Justice explaining why individual rape kits weren’t tested, allow taxpayers to donate a portion their tax return to a fund to support eliminating rape kit backlogs and require law enforcement agencies to notify victims of the status of their kits.

In June, the San Diego City Council added a one-time expenditure of $500,000 to the Police Department’s budget for rape kit testing. A department spokesman said they’re using the money to buy equipment to improve turnaround time for testing the kits. Any remaining money will go toward testing unanalyzed kits, he said.

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